FEDERAL COURT OF AUSTRALIA

ALU15 v Minister for Immigration and Border Protection [2016] FCA 204

ORDERS

THE COURT ORDERS THAT:

1.    The oral application for adjournment by the applicant is refused.

2.    The application for extension of time filed on 6 October 2015 be dismissed.

3.    The applicant to pay the costs of the first respondent, such costs to be taxed if not otherwise agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J:

1    This is an application for an extension of time in which to file a notice of appeal from a decision of the Federal Circuit Court of Australia (ALU15 v Minister for Immigration [2015] FCCA 1912). In that case the primary Judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal (the Tribunal) in which the Tribunal had affirmed a decision of a delegate of the Minister to refuse to grant to the applicant a Protection (Class XA) visa.

Adjournment applications

2    At the hearing the applicant sought an adjournment on two grounds.

3    First the applicant sought an adjournment on the basis of a medical certificate for his own illness. This medical certificate read that the applicant:

… has a medical condition and will be unfit for work from 01/03/2016 to 05/03/2016 inclusive.

4    The applicant also explained that he was unwell, feeling stress and headaches.

5    While the Court sympathises with litigants, particularly litigants in person, who are unwell, the medical certificate produced to the Court was inadequate to found an order for adjournment. To paraphrase the recent comment of Pagone J in Singh v Minister for Immigration and Border Protection [2016] FCA 108, the medical certificate does not address the critical question whether, and if so why, the applicant’s medical condition would prevent him from attending Court and participating effectively in a court hearing. This is particularly so in circumstances where the applicant has actually attended the Court hearing and appeared to function effectively (including responding effectively to questions from the bench).

6    As I observed to the applicant, the medical certificate, in this case produced by Mansfield Family Practice, was wholly inadequate and unsuitable for the purpose of seeking an adjournment of Court proceedings.

7    The second reason the applicant sought an adjournment was to enable him to have extra time to raise funds to procure legal advice in these proceedings.

8    Again, the Court sympathises with litigants in person who seek to obtain legal assistance in prosecuting their applications. However in this case the application was filed in October 2015, almost five months ago. Legal advice can be expensive, and the financial circumstances of the applicant in this case may be somewhat straitened. However I see little utility on adjourning the proceedings for an indefinite period of time in order to allow the applicant to seek further funds, particularly in light of the prejudice to the Minister and the need of the Court to relist this matter at a future time. A further issue which is relevant in this case is the somewhat hopeless state of the grounds of appeal of the applicant in this case, and the very real question in my mind whether they would be improved by the acquisition of further legal advice.

9    The application for adjournment is refused.

Background to proceedings

10    The background facts to the current proceedings are set out in the decisions of the Federal Circuit Court and the Tribunal, and are not controversial.

11    The applicant is of Tamil ethnicity and a citizen of Sri Lanka. He arrived in Australia on 20 June 2012 by boat without valid travel documents. In applying for a Protection visa on 13 November 2012 he made the following statement:

I fear that I will arrested, kidnapped and killed if I return to Sri Lanka because I am a Tamil and have a case pending in Sri Lanka for suspicion of involvement with the LTTE. My situation now is worse than when I was in Sri Lanka because I no longer have the money to bribe the local police and because the authorities will come to know that I left the country illegally and sought asylum in another country. They can do whatever they want to me because I am Tamil.

12    In summary, the applicant claimed that he operated a boarding house, at which stayed a person who the police discovered was carrying “LTTE materials”. I note that LTTE is an acronym for the “Liberation Tigers of Tamil Eelam” which is considered a terrorist group. The applicant claimed that he was taken by the police to the police station and beaten over a period of fourteen days. The applicant managed to be released from the police with the assistance of his brother, and went to Dubai for work for at least a year. Two years later (in 2011) he left Sri Lanka seeking a safer life in Malaysia and Europe, but returned to Sri Lanka in December 2011. He claimed that on his return he was threatened many times by the police for incidents involving, among other things, the sale of a car to a Tamil man, and fled the country by boat in June 2012. His family subsequently moved from their home in Sri Lanka to a Tamil area elsewhere in that country.

13    The applicant’s application for a Protection visa was rejected by the Minister and he sought review of that decision in the Tribunal. The Tribunal found, inter alia, that it had serious credibility issues with the applicant, and raised these issues with him at the hearing. The primary Judge summarised a number of the Tribunal’s concerns as follows:

26.    Thereafter in its reasons the tribunal discussed and made findings about each of the claims made by the applicant. It is not suggested in these proceedings that the tribunal did not understand the claims being made by the applicant or that it did not deal with any of the particular claims made by him.

27.    The tribunal did not accept that the applicant was arrested, detained and beaten for 14 days in 2008. The tribunal rejected the applicant’s claims that he had forgotten to register his boarder and that the one person he forgot to register happened to be a LTTE member. The tribunal found that curious. It determined that the applicant’s claims about that lacked credibility. Further, the tribunal did not accept that a LTTE affiliated person would choose to live in the applicant’s property, which according to the evidence, was next door to the police station. The tribunal considered that the applicant’s account of his detention was cursory and lacked detail or description of what happened over the 14 days of his detention.

28.    The tribunal found that the document that the tribunal referred to as the police clearance certificate that had been provided to it by the applicant, or at his request, was not a genuine document. There were several reasons given by the tribunal for that finding. Those reasons included:

a.    that there were errors in the document (identified by the tribunal) which went beyond mere typographical errors. Spelling and capitalisation are some examples;

b.    the form of the document;

c.    the assertion in the document that the applicant was still wanted by the police, which seemed to the tribunal to be inconsistent with the applicant’s own evidence that prior to his final departure from Sri Lanka:

i.    he drank and socialised with the police regularly and lived next door to the police station;

ii.    he continued to manage two rental properties and buy and sell three wheeler vehicles;

iii.    the applicant was able to travel in and out of Sri Lanka via the airport with his own passport on four occasions.

29.    The tribunal recorded in its reasons:

30.    The tribunal is of the view that the police and authorities were well aware of where he lived and if interested in him could have contacted him. He had had two passports issued, visas issued to Dubai and Malaysia and travelled in and out Sri Lanka four times. Country information is that there are stop and watch lists at the airport for LTTE suspects, criminals and anyone wanted by police, intelligence or CID. If he were on any of those lists he would have been stopped.

And then later at:

32.    The applicant has not been in hiding and has continued to have work and live in the same area. In fact, on his evidence even when he came back from Dubai, he told the police and brought them some alcohol and drank with them. On his evidence he regularly socialised and drank with them. If he was of interest to them, they had regular access and would have arrested him at any time, but did not.

33.    The tribunal does not accept that if he did not drink with them or bribe them with alcohol that he would have been arrested or accused of LTTE. The tribunal does not accept he was fearful of them. If he were, it does not make sense that he would engage socially with them or remain managing a rental property next door to the police station. Further, given their regular socialising, it is not credible that the police would then accuse of him of being LTTE, as it would reflect poorly on them given he lived next door to the police station and that they had· continued socialise with him.

34.    At the end of the hearing, the applicant said it was the Kotenaha police station he had problems with and not the one in his area. However, the tribunal considers the applicant was making up his story and added this as an afterthought in response to tribunal concerns that he could socialise with police but still be “wanted”. Further, the tribunal confirmed with him that the police station where he was supposed to register his guests in 2008 was next door to the, rental property.

35.    In addition, country information is that at the end of the conflict many thousands of LTTE, suspects were rounded up, arrested, detained and sent to rehabilitation camps. The fact that the applicant was not so detained suggests he was not suspected LTTE. The fact that he and his family could continue with their businesses also suggests they were not of interest to authorities. The tribunal does not accept he (or his family) was accused or will be accused of being LTTE.

30.    The tribunal did not accept that the applicant was questioned about the vehicle he sold in 2011 and found his evidence in that regard vague and inconsistent with his statement.

31.    The tribunal considered the country information set out by it in its reasons. It did not accept that because the applicant was Tamil, or a young single male Tamil, or because he lived next door to and associated or drank with police that he was, or would be, perceived or accused of being an LTTE supporter or having LTTE links.

32.    The tribunal also considered country information in relation to the treatment of returned failed asylum seekers and did not accept that the applicant would face a real chance of serious harm if he returned to Sri Lanka.

33.    The tribunal did accept that the applicant would be charged for his illegal departure under a Sri Lankan law and that he would be bailed and fined up to 50,000 rupees. However, it did not accept that the applicant faced a real chance of torture, interrogation or mistreatment upon arrival or during any questioning process to establish his identity and bail. The tribunal did not consider that the applicant was at risk of being detained under the Prevention of Terrorism Act (Sri Lanka). Nor did the tribunal consider that the applicant faced a real chance of serious harm from other Sinhala prisoners given that he would be in remand for a short period of time. The tribunal did not consider that what was likely to be a short period of time in detention upon his return would amount to serious harm for the purposes of the Migration Act.

34.    The tribunal found the Sri Lanka departure laws are laws of general applicant and therefore the enforcement of those laws did not constitute persecution. The tribunal assessed the applicant’s eligibility for complementary protection and it considered that there was no real risk of significant harm to him.

Decision of the Federal Circuit Court

14    The applicant raised six grounds of review with the Federal Circuit Court. In summary, the primary Judge rejected these grounds on the basis that:

    insofar as the applicant claimed that the Tribunal misapprehended the nature of a document put to it (a “police clearance certificate”), the Tribunal’s reasons reveal that it properly understood the purport and contents of the document; and

    to the extent that the applicant argued that the Tribunal ought to have requested from the applicant copies of bills or accounts for his hospital stay for the period following his detention and the sustaining of injuries with the police, the Tribunal was in fact not obliged to ask for those documents. This was particularly so in circumstances where the applicant was legally represented before the Court below, and he could have provided them to the Tribunal had he so chosen.

15    In conclusion, his Honour found that the decision of the Tribunal was not infected by jurisdictional error.

Application for extension of time

16    The applicant did not appeal to this Court within the period of 21 days prescribed by r 36.03 of the Federal Court Rules 2011 (Cth) (the Federal Court Rules) and accordingly sought an extension of time under r 36.05 of the Federal Court Rules.

17    It is well established that factors for the Court to take into account in considering an application for extension of time include:

    the extent of the delay;

    the explanation for the delay;

    any prejudice a respondent might suffer because of the delay; and

    the merits of the proposed appeal.

(Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.)

18    In this case the length of delay was 89 days, which the Minister submits (and I accept) is a moderate delay.

19    The explanation for the delay provided by the applicant at the hearing was that he has been stressed and ill. I am prepared to accept this, noting that the applicant is a litigant in person and a foreign national, whose first language is not English, and who apparently ceased to have legal representation after the proceedings in the Court below.

20    The Minister does not contend that he would be prejudiced by the delay. In my view this is a reasonable concession for the Minister to make.

21    The Minister opposes the grant of extension of time however on the basis that the proposed appeal has no merit.

22    The draft notice of appeal filed by the applicant advances the following two grounds of appeal:

1.    The proceeding in the order which the application relates was pronounced involves a question of law.

2.    There is a jurisdictional error occurs in the order

(errors in original.)

23    In respect of these draft grounds of appeal I make the following observations.

24    First, they are vague, bordering on incomprehensible.

25    Second, they do not identify any errors in the decision of the Federal Circuit Court, or the Tribunal.

26    Third, in light of the difficulties faced by litigants in person, in particular those for whom English is a foreign language, I have examined the decision of his Honour as well as the decision of the Tribunal, but am unable to identify any error which could in any way fall within these draft grounds of appeal. The primary concern of the applicant at the hearing is his reluctance to return to Sri Lanka. Unfortunately this is not a ground of appeal which warrants the disturbance of the decision below.

27    In such circumstances I see no basis on which time should be extended to file the notice of appeal.

Associate:

Dated:    3 March 2016